Whittington v Solicitor-General

[2023] NZHC 3227

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-045

[2023] NZHC 3227

UNDER THE

Coroners Act 2006 and Judicial Review Procedure Act 2016

IN THE MATTER OF

An application for judicial review

BETWEEN

MARK ANTHONY WHITTINGTON

Applicant

AND

SOLICITOR-GENERAL

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

I M G Clarke for Respondent

Judgment:

15 November 2023

JUDGMENT OF CHURCHMAN J

Background

[1]                 The applicant has commenced judicial review proceedings as long ago as    18 October 2021. The second amended statement of claim is dated 24 August 2022.

[2]                 The matter has been the subject of many interlocutory applications and a number of minutes or directions from various judges.

[3]                 The matter came before me as duty judge on 30 October 2023 and I issued a minute of the same date which covered three points. The first was to confirm that the Court was prepared to read two different versions of the same affidavit that

WHITTINGTON v SOLICITOR-GENERAL [2023] NZHC 3227 [15 November 2023]

Mr Whittington had filed as if they were one document, secondly the timetable directions previously made by McQueen J were repeated, and thirdly, timetable directions towards hearing were made.

[4]                 On 31 October 2023 Mr Whittington filed a memorandum described as “Appeal minute of Justice Churchman”. The memorandum is difficult to follow but concluded with the words:

The applicant, respectfully seeks request to the Wellington High Court for this matter transferred to the Criminal Registry.

[5]                 In response to that memorandum I issued a further minute of 1 November 2023 explaining why judicial review proceedings could not be transformed from civil proceedings into criminal proceedings.

[6]                 That prompted Mr Whittington to file, on 2 November 2023, a document described as “Interlocutory application of Mark Anthony Whittington”. Again that memorandum is confusing but it appears that Mr Whittington wishes to appeal both of my minutes. Paragraph 4 says:

4.The applicant, under s 56(1)(c)(3) of the Senior Courts Act 2016    makes an application to appeal to the Court of Appeal the Call Minutes of Justice Churchman.

[7]Paragraph 5 of the memorandum says:

5. the applicant, under rule 26(11) of the High Court Rules  2016  respectfully requests, the transcript of evidence be made available of the Call on 30 October 2023.

Appeal

[8]                 Section 56 of the Senior Courts Act says that a judgment, decree or order can be appealed. There have been a number of cases on whether a minute is a “decree” capable of being appealed.

[9]                 The leading case would appear to be Re Siemer.1 At [23] of that case, the Court of Appeal rejected Mr Siemer’s appeal against a minute of Palmer J, on the basis that

1      Re Siemer [2020] NZCA 393.

it did not determine any issue against Mr Siemer. The Court stated that in order to qualify as a judgment decree or order, there must be a finding or ruling by the Court which amounts to a determination of an issue. A mere expression of a view, short of a conclusion or a possible course of action will not constitute a judgment decree or order. This conclusion was confirmed by the Court of Appeal recently in Siemer v Registrar of the Supreme Court.2

[10]              Neither of the two minutes that I have issued would appear to have determined any issue against Mr Whittington. The 30 October 2023 minute agreed to his request that two versions of the same affidavit be read as if they were one affidavit, repeated timetable directions previously made and made timetable directions towards the hearing.

[11]              The minute of 1 November 2023 simply explained why it was not possible to transform judicial review proceedings into criminal proceedings.

[12]              Mr Whittington therefore does not have a right of appeal in respect of those minutes.

Transcript

[13]              Mr Whittington has sought a transcript of the “evidence” from the 30 October 2023 call over.

[14]              Rule 26(11) of the High Court Rules 2016 refers to a transcript of evidence. No evidence was given at the call over on 30 October 2023, therefore no transcript exists. There is nothing to be made available to Mr Whittington.

Churchman J

Solicitors and counsel:
Crown Law Office, Wellington for the Respondent

Copy to:

The Plaintiff

2      Siemer v Registrar of the Supreme Court [2023] NZCA 324 at [14].